Monday, July 14, 2014
Professor Linda Mullenix (U. Texas) has posted to SSRN her article, Ending Class Actions as We Know Them: Rethinking the American Class Action, Emory. L.J. (forthcoming 2014). Here is the abstract:
Class actions have been a feature of the American litigation landscape for over 75 years. For most of this period, American-style class litigation was either unknown or resisted around the world. Notwithstanding this chilly reception abroad, American class litigation has always been a central feature of American procedural exceptionalism, nurtured on an idealized historical narrative of the class action device. Although this romantic narrative endures, the experience of the past twenty-five years illuminates a very different chronicle about class litigation. Thus, in the twenty-first century American class action litigation has evolved in ways that are significantly removed from its golden age. The transformation of class action litigation raises legitimate questions concerning the fairness and utility of this procedural mechanism, and whether class litigation actually accomplishes its stated goals and rationales. With the embrace of aggregative non-class settlements as a primary – if not preferred – modality for large scale dispute resolution, the time has come to question whether the American class action in its twenty-first century incarnation has become a disutilitarian artifact of an earlier time. This article explores the evolving dysfunction of the American class action and proposes a return to a more limited, cabined role for class litigation. In so doing, the article eschews alternative non-class aggregate settlement mechanisms that have come to dominate the litigation landscape. The article ultimately asks readers to envision a world without the twenty-first century American damage class action, limiting class procedure to injunctive remedies. In lieu of the damage class action, the article encourages more robust public regulatory enforcement for alleged violation of the laws.
Sunday, July 13, 2014
Representatives of the U.S. Chamber of Commerce Institute for Legal Reform, American Insurance Association, American Tort Reform Association, Lawyers for Civil Justice, and National Association of Manufacturers have submitted a letter to Administrative Office of the U.S. Courts, requesting the that Rule 26 of the Federal Rules of Civil Procedure be amended to require disclosure of third-party litigation financing. The Institute for Legal Reform also has provided a summary of their request.
Thursday, May 29, 2014
Plaintiffs' attorneys huddled in Chicago on Wednesday to strategize about where to ask the MDL Panel to send the GM ignition switch cases. As usual, there are several things that will influence plaintffs' attorneys' pick.
According to this morning's article in the WSJ, Elizabeth Cabraser called the litigation "a perfect storm for a class action." Maybe. But that will largely depend on which circuit and which judge hears the case, how GM's bankruptcy affects the pending claims, and whether attorneys forgo personal injury claims (they will likely be excluded in the class definition) to pursue product liability and economic injuries.
Choice of procedural law, like how to apply Rule 23, can vary. Under Chan v. Korean Airlines, Ltd. (D.C. Cir. 1989), the Van Dusen doctrine, which holds that transferee courts must apply the choice of law interpretation of the transferor circuit, may not apply to 1407 transfers. Rather, when it comes to procedural and other federal law matters, Korean Airlines suggests that transferee courts are obligated to follow their own interpretation of the relevant law. Several circuits follow this rationale including the Second, Eighth, Ninth, and Eleventh. Other circuits, including most notably, the Seventh, have held that a transferee court should use transferor court's interpretation of federal law.
According to Bloomberg, several plaintiffs' attorneys are pushing for a California venue before Judge James Selna, who is currently handling the Toyota acceleration MDL. This strategy makes sense on several fronts. The Ninth Circuit, which originally upheld (in part) the certification in Dukes v. Wal-Mart Stores, Inc., has shown a willingness to resolve aggregate cases through class actions. And given that courts in the Ninth Circuit apply their own procedural law where circuit splits are concerned, this could further help plaintiffs. Finally, Judge Selna, who certified an economic loss settlement class action in the Toyota litigation, is a logical choice.
But other plaintiffs' attorneys (and of couse GM) have other ideas about where the MDL should land. Bloomberg reports:
Other plaintiffs want the cases to be heard in Chicago, Miami or Corpus Christi,Texas, where they have sued. GM wants the cases consolidated in the federal court in Manhattan, about a mile from where a prior incarnation of the company filed for bankruptcy in 2009. Company lawyers say proximity to the bankruptcy court trumps Selna’s experience.
While the Panel considers the forum requests by the parties, it is in no way limited to those venues. There are several factors that it typically cites in favor of forum selection such as the location of discovery materials, convenience of the witnesses, location of grand jury proceedings, possibility of coordination with related state-court proceedings, where the majority of cases are located, knowledge of the transferee judge, and the willingness and motivation of a particular judge to handle an MDL docket. Of these factors, the transferee judge is by far the most important. The Panel tends to look for judges who have handled MDLs successfully in the past. And, for better or worse, "successful" means quick settlement (see here, p. 11-12 for more).
The Judicial Panel on Multidistrict Litigaiton is comprised of seven judges from around the country. Judge David Proctor is the Panel's newest edition and was added just this year to replace Judge Paul Barbadoro.
For more on the process that will--and should--unfold once a transferee judge is appointed and how those judges should go about appointing lead lawyers, see here.
Wednesday, May 28, 2014
As I've slowly emerged from my grading slump, I've caught up on a number of interesting articles dealing with class actions, two of which are authored by Professor Jay Tidmarsh at Notre Dame. In case you missed them, too, I thought I'd mention them here.
The first is a new take on auctions. Auctions have been proposed and used to pick class counsel, but Tidmarsh proposes using them to increase settlement prices. Once the parties reach a settlement, the court puts the class's claims up for auction. If an entity--presumably a corporation, though perhaps a third-party financier?--outbids the settlement price, that entity purchases the class's rights to sue and can continue to litigate against the defendant. Here's the idea in Tidmarsh's own words in his SSRN abstract:
Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals.
This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea is to allow the court, once a settlement has been achieved, to put the class’s claims up for auction, with the settlement acting as reserve price. An entity that outbids the settlement becomes owner of the class’s claims, and may continue to pursue the case against the defendant. A successful auction results in more compensation for the class. On the other hand, if no bids are received, the court has evidence that the settlement was fair. The prospect of a settlement auction also deters class counsel and the defendant from negotiating a sweetheart deal that sells out the class.
The Article works through a series of theoretical and practical issues of settlement auction, including the standards that a court should use to evaluate bids, the limitations on who may bid, and the ways to encourage the emergence of an auction market.
Tidmarsh's second article returns to a long-espoused notion: trial by statistics (or, as Justice Scalia used in the pejorative sense in Wal-Mart Stores, Inc. v. Dukes, "Trial by Statistics."). Here's the abstract, which explains the idea concisely:
“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible.
After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a court conducts trials in a random sample of cases and averages the results, as in trial by statistics. It then presumptively applies the average award to all other cases, but, unlike trial by statistics, any party can reject the presumptive award in favor of individual trial. The Article describes the circumstances in which parties have an incentive to contest the presumption, and explores a series of real-world issues raised by this approach, including problems of outlier verdicts, strategic behavior by parties, and the parties’ risk preferences. It proposes ways to minimize these issues, including a requirement that the party who reject a presumptive judgment must pay both sides’ costs and attorneys’ fees at trial.
The Article concludes by showing that this approach is consonant with important procedural values such as efficiency, the accurate enforcement of individual rights, dignity, and autonomy.
Friday, May 16, 2014
I posted a new article to SSRN this morning that's been a labor of love for well over a year now. I'm excited about this new piece for a few reasons.
First, it debuts an original data set of all lead lawyers appointed in 72 product liability and sales practices MDLs that were pending as of May 14, 2013. As such, it's the only paper (that I know of) that includes empirical evidence on plaintiffs-side repeat players appointed to leadership positions. (Yes, it includes a list of some of the most entrenched repeat lawyers and law firms as an appendix.) (If this is of interest, have a look at Margaret Williams, Emery Lee, and Catherine Borden's recently published paper in the Journal of Tort Law titled Repeat Players in Federal Multidistrict Litigation, which looks at all plaintiffs' attorneys in MDLs using social network analysis.)
I also explain why appointing a leadership group comprised of predominately repeat players can cause inadequate representation problems. For example, repeat players playing the long game have rational, economic incentives to curry favor with one another, protect their reputations, and develop reciprocal relationships to form funding coalitions and receive client referrals. As such, extra-legal, interpersonal, and business concerns may govern their interactions and trump their agency obligations to uniquely situated clients who could threaten to bust a multi-million dollar deal. Non-conforming lawyers may be ostracized and informally sanctioned, which promotes cooperation, but deters dissent and vigorous representation. Over time, expressing contrary opinions could brand the dissenting lawyer a defector, which could decrease lucrative leadership opportunities. (Other reasons abound, which I explain on pages 25-27 of the paper.)
Second, it provides some much needed guidance for transferee judges. Although the Manual for Complex Litigation remains the go-to guide for transferee judges, it hasn't been updated in 10 years. So much has changed since the fourth edition was published in 2004. Accordingly, in "Judging Multidistrict Litigation," I suggest best practices for appointing and compensating lead lawyers. Judges can compensate lead lawyers on a coherent and more predictable basis by distilling current theories down to their common denominator: quantum meruit. Quantum-meruit awards would align fees with other attorney-fee decisions and compensate leaders based on the value they actually add.
Third, as anyone familiar with the area knows, settlement review in nonclass litigation is controversial at best. After judges expressly deny class certification they then harken back to Rule 23 and their "inherent equitable authority" to comment on settlements. So, employing a quantum-meruit theory for awarding lead lawyers' attorneys' fees would give judges a legitimate private-law basis for scrutinizing settlements. Because courts must evaluate the case's success to determine how much compensation is merited, it could likewise help stymie a trend toward self-dealing where repeat players insert fee provisions into master settlements and require plaintiffs and their attorneys to "consent" to fee increases to obtain settlement awards.
The article is forthcoming in N.Y.U. Law Review in April of 2015, so I still have a bit of time to tinker with it and welcome comments in the interim (eburch at uga.edu). In the meantime, here's the formal SSRN abstract.
High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.
Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of repeat players to leadership positions, which may complicate genuine consent through inadequate representation. Repeat players’ financial, reputational, and reciprocity concerns can govern their interactions with one another and opposing counsel, often trumping fidelity to their clients. Systemic pathologies can result: dictatorial attorney hierarchies that fail to adequately represent the spectrum of claimants’ diverse interests, repeat players trading in influence to increase their fees, collusive private deals that lack a viable monitor, and malleable procedural norms that undermine predictability.
Current judicial practices feed these pathologies. First, when judges appoint lead lawyers early in the litigation based on cooperative tendencies, experience, and financial resources, they often select repeat players. But most conflicts do not arise until discovery and repeat players have few self-interested reasons to dissent or derail the lucrative settlements they negotiate. Second, because steering committees are a relatively new phenomenon and transferee judges have no formal powers beyond those in the Federal Rules, judges have pieced together various doctrines to justify compensating lead lawyers. The erratic fee awards that result lack coherent limits. So, judges then permit lead lawyers to circumvent their rulings and the doctrinal inconsistencies by contracting with the defendant to embed fee provisions in global settlements—a well recognized form of self-dealing. Yet, when those settlements ignite concern, judges lack the formal tools to review them.
These pathologies need not persist. Appointing cognitively diverse attorneys who represent heterogeneous clients, permitting third-party financing, encouraging objections and dissent from non-lead counsel, and selecting permanent leadership after conflicts develop can expand the pool of qualified applicants and promote adequate representation. Compensating these lead lawyers on a quantum-meruit basis could then smooth doctrinal inconsistencies, align these fee awards with other attorneys’ fees, and impose dependable outer limits. Finally, because quantum meruit demands that judges assess the benefit lead lawyers’ conferred on the plaintiffs and the results they achieved, it equips judges with a private-law basis for assessing nonclass settlements and harnesses their review to a very powerful carrot: attorneys’ fees.
May 16, 2014 in Aggregate Litigation Procedures, Class Actions, Ethics, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement, Vioxx, Zyprexa | Permalink | Comments (0) | TrackBack (0)
Thursday, April 17, 2014
The Stanford Journal of Complex Litigation is hosting a symposium, "A Complicated Cleanup: The BP Oil Spill Litigation," on Thursday, May 8, 2014 and Friday, May 9, 2014, at Stanford Law School. The keynote address speaker is Kenneth Feinberg, the Gulf Coast Claims Administrator. Other symposium speakers will include Elizabeth Cabraser of Lieff Cabraser, Professor Francis McGovern (Duke), Professor Linda Mullenix (Texas), Professor Maya Stenitz (Iowa), and myself. Panel moderators will include Stanford Law Professors Nora Engstrom, Deborah Hensler, and Janet Alexander.
Sunday, March 23, 2014
I'm serving as Co-Director of Southwestern Law School's 2014 Vancouver Summer Law Program, which is offered in collaboration with the University of British Columbia Faculty of Law and the International Centre for Criminal Law Reform and Criminal Justice Policy. All classes will take place at the University of British Columbia's new Allard Hall, which was completed in 2011 at a cost of $56 million. On-campus housing at St. Andrew's Hall next to the law school may also be arranged through the summer law program. The program will run from May 25 to June 25, 2014. Here is the brochure.
One of the courses offered will be a course on Global Tort Litigation, which I'll be co-teaching with Professor Jasminka Kalajdzic of the University of Windsor. Other courses include comparative criminal procedure, international environmental law, and comparative sexual orientation law; students may elect to take two courses for four units, or three courses for six units.
We welcome applications from students in good standing at an ABA-approved or state-accredited American law school or accredited Canadian law school. Special reduced tuition rates are available for Canadian law students. Come join us in beautiful Vancouver, Canada!
Friday, March 14, 2014
In a decision issued on March 3, the Fifth Circuit held that BP must stick to the settlement it signed on to, even if it doesn't like any longer the broad approach to compensation it once agreed to. As Professor and former Soliciter General Charles Fried said, in sum and substance, a contract is a promise. Here is an excerpt from the Fifth Circuit opinion:
There is nothing fundamentally unreasonable about what BP accepted but now wishes it had not. One event during negotiations in the fall of 2012 suggests reasons for just requiring a certification [instead of proof of causation]. The claims administrator, in working through how the proposed claims processing would apply in specific situations, submitted a hypothetical to BP and others. It posited three accountants being partners in a small firm located in a relevant geographic region. One of the three partners takes medical leave in the period immediately following the disaster, thus reducing profits in that period because that partner is not performing services for the firm. At least some of the firm's loss, then, would have resulted from the absence of the partner during his medical leave. BP responded that such a claim should be paid.
We raise this not for the purpose of analyzing an issue we conclude is not relevant to our decision, namely, whether BP is estopped from its current arguments. Instead, we mention it in order to identify the practical problem mass processing of claims such as these presents, a problem that supports the logic of the terms of the Settlement Agreement. These are business loss claims. Why businesses fail or, why one year is less or more profitable than another, are questions often rigorously analyzed by highly-paid consultants, who may still reach mistaken conclusions. There may be multiple causes for a loss. ... The difficulties of a claimant's providing evidentiary support and the claims administrator's investigating the existence and degree of nexus between the loss and the disaster in the Gulf could be overwhelming. The inherent limitations in mass claims processing may have suggested substituting certification for evidence, just as proof of loss substituted for proof of causation. ...
In re Deepwater Horizon, --- F.3d ----, 2014 WL 841313, *5 (5th Cir. 2014).
Readers may also be interested in a Bloomberg News article by Laura Calkins and Jeff Feeley entitled BP Must Live with $9.2 Billion Oil Spill Deal, Court Says. In other BP news, looks like it can drill in the Gulf of Mexico again, according to the NYTimes.
Tuesday, March 4, 2014
Louisiana Law Review is hosting a symposium on Multidistrict Litigation this Friday, March 7, 2014, that focuses on remand and may be of interest to our readers. The title of the symposium is "The Rest of the Story: Resolving Cases Remanded by MDL Here's the link for registration and additional information.
Here's the list of Panels and Panelists:
8:25-8:30: Welcome Address & Opening Remarks
- Chancellor Jack Weiss; LSU Law School
8:30-9:30: Panel 1: Collaboration of Judges and Attorneys in MDL Case Management
The panel will discuss how attorneys and judges can successfully collaborate to use disaggregation as a tool of effective case management.
Moderator: Francis McGovern; Professor of Law, Duke Law School
- Judge Eldon Fallon; U.S. District Court for the Eastern District of Louisiana
- Richard Arsenault; Neblett, Beard, & Arsenault
- James Irwin; Irwin Fritchie Urquhart & Moore, LLC
9:40-10:40: Panel 2: Effectively Planning for Disaggregated Discovery
The panel will discuss when discovery issues should be disaggregated for separate resolution, and the costs, benefits, and challenges of reserving issues for separate discovery.
Moderator: Judge Lee Rosenthal; U.S. District Court for the Southern District of Texas
- Mark Lanier; The Lanier Law Firm
- James Irwin; Irwin Fritchie Urquhart & Moore, LLC
- Dean Edward F. Sherman; Tulane University Law School
10:50-11:50: Panel 3: Integrating Aggregated and Disaggregated Discovery Issues
The panel will discuss various kinds of discovery (e.g., E-Discovery, expert discovery, and specific discovery), and the strategic and case management challenges each method presents in the context of MDLs, including both aggregated and disaggregated discovery issues.
Moderator: Mark Lanier, The Lanier Law Firm
- Judge Lee Rosenthal; U.S. District Court for the Southern District of Texas
- Francis McGovern; Professor of Law, Duke Law School
- Richard Arsenault; Neblett, Beard, & Arsenault
- David Jones; Beck Redden, LLP
11:50-12:10: Lunch Break
12:10-1:10: Panel 4: (Lunch Presentation) The Real Story: FJC Data on What the Empirical Data on MDL Remands Shows
Federal Judicial Center researchers will present findings from their research on multidistrict litigation. The analysis will focus on two sets of cases: (1) cases that are considered for transfer but not transferred, and (2) cases that are transferred and that are subsequently remanded back to the transferor court. Understanding these cases, and the cases that are resolved in the transferee court, may provide some insight into the effects of aggregation on various kinds of cases
Moderator: Judge Lee Rosenthal; U.S. District Court for the Southern District of Texas
- Emery G. Lee, III, Federal Judicial Center
- Margaret Williams, Federal Judicial Center
- Catherine Borden, Federal Judicial Center
1:20-2:20: Panel 5: When Remand is Appropriate
The panel will discuss at what stages plaintiffs, defendants, and judges perceive optimal windows to disaggregate various kinds of issues, and the factors that influence the decision and timing.
Moderator: Dean Edward F. Sherman, Tulane University Law School
- Judge Fallon; U.S. District Court for the Eastern District of Louisiana
- Professor Elizabeth Burch, University of Georgia School of Law
- David Jones, Beck Redden, LLP
2:30-3:30: Panel 6: How Remand Should be Effectuated
The panel will discuss how judges and attorneys work together to effectuate remand of MDL cases, including methods for ensuring smooth transitioning of work product, case management, and expertise to state and federal judges upon remand.
Moderator: Francis McGovern; Professor of Law, Duke Law School
- Judge Fallon; U.S. District Court for the Eastern District of Louisiana
- Professor Teddy Rave, University of Houston
- Professor Elizabeth Burch, University of Georgia School of Law
3:30-3:45: Closing Remarks
Tuesday, January 14, 2014
The Fifth Circuit issued a decision on January 10th affirming the class action settlement in the In re Deepwater Horizon litigation. You can find the opinion here.
This opinion is the result of objections to the settlement, but BP intervened to argue that there was an Article III standing problem with the way the settlement agreement had been interpreted. That interpretation was very generous to claimants in its interpretation of how they must prove economic loss to collect. The problem BP faces now is that it didn't cap the settlement amount in the agreement (yes, you read that right, and furthermore this was a selling point of the settlement). As a result, BP has a classic "if you build it, they will come" problem and is trying to upend the settlement as a result. At the moment, the Fifth Circuit in a separate opinion by a separate panel has stayed the settlement adminsitration as it considers the interpretation of the agreement. In that separate opinion, the panel (which couln't quite agree) indicated that the agreement interpretation may be too generous and remanded for reconsideration. You can find that opinion here.
In the opinion issued on Friday, this panel indicated the interpretation may be just fine, and sent a strong hint to the District Judge about what he should do.
So here's the question, why did BP agree to these terms? It was an open ended settlement with a broad geographic reach and a flexible standard for compensation - that was clear from the start. I'm sure BP's excellent counsel knew this was a risk. So what happened? Were the economists predictions dead wrong? Is this just a case of buyer's remorse?
The WSJ has some coverage, here.
The Supreme Court issues two decisions this morning, one on personal jurisdiction and the other on mass actions under CAFA.
In Mississippi ex rel Hood v. AU Optronics, the Court issued a unanimous opinion authored by Justice Sotomayor holding that an action brought by the Mississippi AG could not be removed to federal court under CAFA's mass action exception because the AG is a single plaintiff. The opinion is based on a formal reading of the statute. You can find the opinion here.
In Daimler AG v. Bauman, the Court held that the parent company was not subject to general personal jurisdiction in California for a human rights lawsuit relating to the company's conduct in Argentina's dirty war. The opinion, written by Justice Ginsburg, was nearly unanimous with a concurrence from Justice Sotomayor.
The Court held over (again) petitions relating to consumer class actions alleging that washing machines cause mold. They are now scheduled for conference on January 17th.
Wednesday, November 27, 2013
Mass harm exerts enormous pressure on civil justice systems to provide efficient but fair procedures for redress. In this context, settlement of mass disputes is easily understood as a common good. Yet settlements involving hundreds or thousands of claims, often across jurisdictions, raise concerns about the substantive fairness of the compromise reached by lawyers, and the ability of the court system to ensure meaningful oversight. Unburdening the judicial system from mass claims comes at a price; how much rough justice are we prepared to accept?
The difficulty of balancing these competing interests is ubiquitous. Canadian class action settlement practice is no exception. In this book chapter, I first explore the realities of this form of litigation, and to some extent debunk the myth that class actions inevitably result in large monetary settlements. I then turn to a brief discussion of the incentives and disincentives to settle large claims, for both plaintiffs’ lawyers and defendants. In Part III, I describe and critique the judicial framework for the approval of proposed settlements. I finish by pointing out the lack of alternatives to class proceedings and conclude that, though not perfect, the Canadian class action settlement system stands as a model for consideration by other jurisdictions wrestling with the problem of mass disputes.
The chapter is part of the forthcoming book, Resolving Mass Disputes: ADR and Settlement of Mass Claims (Edward Elgar 2013), edited by Christopher Hodges and Astrid Stadler.
Thursday, November 7, 2013
Yesterday, the Supreme Court heard oral arguments on whether parens patriae actions brought by state attorneys general are removable as mass actions under the Class Action Fairness Act. (Mississippi ex rel. Hood v. AU Optronics Corp., U.S., No. 12-1036) The lower courts have split on the issue, with the Fifth Circuit holding that such actions are removable when the citizens are the "real parties in interest," and the Fourth, Seventh, and Ninth Circuits reaching the opposite conclusion. The Fifth Circuit, in Louisiana ex rel. Caldwell v. Allstate Insurance Co., held that because the attorney general sought damages on behalf of insurance policy holders, the policy holders were the real parties in interest to that relief. But other courts, even within the Fifth Circuit, have distinguished that reasoning. Judge Fallon, for example, in some of the Vioxx cases, held that the Kentucky attorney general's action against Merck was not removable as a class action. He distinguished Caldwell, reasoning that it was decided under CAFA's mass action provision and the citizens of Kentucky were not the real parties in interest. Instead, the Kentucky attorney general was requesting injunctive relief and civil penalties, not damages as was the case in Caldwell.
The issue is an important one as the standard for certifying a class action has become more rigorous. Many commentators have argued that state attorneys general should step into the breach to provide relief and deterrence when actions aren't certifiable as class actions. Yet, questions remain about this approach. Specifically, most parens patriae statutes do not contain the same protections as Rule 23 does with regard to adequate representation. Plus, courts are often unsure how to evaluate issue or claim preclusion when a private citizen sues in the wake of a parens patriae action.
For the interested reader, yesterday's BNA Class Action Litigation Report had an article by Jessie Kokrda Kamens about the oral argument. Her take was that even though some justices questioned state attorneys generals' motives in bringing parens patriae actions, they weren't ready to declare them removable under CAFA.
Friday, October 11, 2013
Defendants in the moldy washers cases have filed cert petitions once again after the 6th and 7th Circuits reinstated those liability only (or issue) class actions. You can find the briefs here and here.
It doesn't make sense for the Supreme Court to grant cert, but stranger things have happened.
Why don't I think the Court should grant cert? Commonality is clear, there aren't real damages issues because its an issue class action and the circuits are coming together on the question of issue class actions and their parameters (coalescing around the ALI proposals and the Manual on Complex Litigation) and these are squarely in the field where class actions are most useful - consumer claims. In other words, there's nothing adventuresome here for the Court to consider.
For more defense side links with a different point of view see the Volokh Conspiracy.
Wednesday, October 2, 2013
In the human rights litigation over Argentina's "dirty war" of the 1970s and 1980s, a dispute over personal jurisdiction has reached the Supreme Court and will be argued on October 15 (DaimlerChysler AG v. Bauman). A group of Argentinian plaintiffs sued DaimlerChrysler AG, alleging that the company's Argentinian subsidiary participated in kidnappings and other serious wrongdoing. They sued in the Northern District of California. On the question of personal jurisdiction, the Ninth Circuit held that DaimlerChrysler was subject to general jurisdiction in California based on the contacts of its US subsidiary, Mercedes Benz USA. The Supreme Court granted certiorari to resolve the jurisdictional question.
The Vanderbilt Law Review has published an online roundtable concerning the case, and the initial papers -- by Donald Childress, Burt Neuborne, Suzanna Sherry, Linda Silberman, and myself -- are now available on the Vanderbilt Law Review En Banc website. My own contribution, entitled The Home-State Test for General Personal Jurisdiction, takes a strong view that the Ninth Circuit got it wrong. General jurisdiction over corporations requires a home-state relationship; it should not be founded merely on the contacts of a subsidiary acting as an agent, or on the fact that a company has a substantial presence or does substantial business in the forum state (even if that business is "continuous and systematic," to use the ambiguous and misleading language that the Supreme Court should finally abandon as a description of the sort of relationship that justifies general jurisdiction).
Thursday, September 5, 2013
No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent “trolls” and BitTorrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly-situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to exist for defendant aggregation — avoiding duplicative litigation, making feasible negative-value claims/defenses, and allowing the aggregated parties to mimic the non-aggregated party’s inherent ability to spread costs. If so, why is there such resistance to defendant aggregation?
Perhaps, contrary to theoretical predictions, defendant aggregation is against defendants’ self-interest. This may be true in certain types of cases, particularly where the plaintiff’s claims would not be viable individually, but does not apply to other types of cases, particularly where the defendants’ defenses would not be viable individually. These latter cases are explained, if at all, based on cognitive limitations. In any event, defendant self-interest does not justify systemic resistance to defendant aggregation. Likewise, systemic resistance is not warranted because of concerns of weak claims or unsympathetic plaintiffs, the self-interest of individual judges handling aggregated cases, or capture by defendant interests. This Article proposes that to obtain the systemic benefits of defendant aggregation and overcome the obstacles created by defendant and judicial self-interest, cognitive limitations, and capture, defendant aggregation procedures should use non-representative actions, provide centralized neutral control over aggregation, and limit aggregation to common issues. This Article concludes with a modified procedure to implement these principles: inter-district related case coordination.
Tuesday, September 3, 2013
Professor Jill Wieber Lens (Baylor) has posted to SSRN her article, No Matter the Enormous Cost: A Defendant's Accuracy-Based Right to Present Defenses. Here's the abstract:
The Supreme Court has held that a plaintiff has a due process right to her day in court. The right is grounded in a process-based theory of procedural due process, which values litigant participation intrinsically. The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed something similar — a right to present defenses. The Court recognized that right in both cases, stating that a defendant could not be punished for harming nonparties or be forced to pay damages to a class action plaintiff without being provided the opportunity to present defenses specific to the nonparties and absent plaintiffs.
The cases are significant not because the Court found the right, but how it did so — relying on an outcome-based theory of procedural due process, under which procedures are necessary to achieve accurate results. The pursuit of accuracy is alarmingly uncompromising. Only the accuracy resulting from individualized proceedings was acceptable. And the Court required individualized proceedings despite the costs — unpunished defendants, with little incentive to alter their behavior, and uncompensated, injured plaintiffs. But the Court did not weigh the costs and instead focused on increasing accuracy even though perfect accuracy can never be achieved. The cases pave the way for an absurdly broad, outcome-based right to day in court for defendants.
Monday, August 19, 2013
Am Law Litigation Daily has an article on the tobacco companies' filing another certiorari petition in an Engle progeny case: Tobacco Companies Seek Supreme Court Cert in Engle Case, by Ross Todd. Here's their petition for a writ of certiorari. The appellate team includes Greg Katsas (Jones Day), Paul Clement (Bancroft), and Miguel Estrada (Gibson Dunn).
I've previously addressed issue preclusion, verdict variability, and problems with the Engle case in my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temp. L. Rev. 1013 (2007).
Tuesday, August 13, 2013
Adap Liptak of the NYTimes has a piece When Lawyers Cut Their Clients Out of the Deal about a cy pres settlement with Facebook. In this settlement (approved by the 9th Circuit) the lawyers got $2.3 million and the clients got a cy pres contribution, apparently $6.5 million to a foundation over which Facebook has some control according to the article. The cy pres recipient is something called the Digital Trust Foundation. A quick google search came up with a bunch of references to the Facebook settlement but no website for this foundation.
The Ninth Circuit affirmed the settlement and denied rehearing en banc, with a dissent on rehearing en banc, making this a possible Supeme Court cert grant. (A cert petition was filed on June 26, 2013).
There is a lot of scholarship on the topic of how much lawyers should be paid relative to class members as well as articles critizing cy pres settlements. Some links to this work are below. The problem is this. We regulate entities like Facebook largely by litigation. In the absence of the class action, there would be little or no enforcement of the consumer protection laws. But the class action litigation needs to be funded, and it is funded out of lawyers percentage of the total fund, usually the total fund from a settlement because class actions are almost never litigated. Its very hard to certify a class action, so class actions are often certified for settlement only. The incentive of the lawyers, fearing no class certification or realistic possibility of actually litigating, is to settle. The incentives for defendants, wanting to get the litigation off their books, is to settle cheap. The answer to this problem in my view is to allow classes to be litigated, not to tighten the certification standards further.
If the settlement will deter future misconduct, even if the money doesn't go directly to the class members, there is still a lot of societal value there. But is $8.8 million enough to deter Facebook? Does it have any relationship to the potential value of this lawsuit? That is, what is the value of the claims multiplied by the probability of success?
In my own work, I've suggested that cy pres settlements are not necessarily bad, but that certainly doesn't mean they are always good. Class members should just be polled in determining where cy pres settlements should go. The argument that class members will not appreciate the putative $1 (I think I saw it was $1.12) they would get in a settlement like this one is reasonable. But that doesn't make a settlement like this one okay. Especially in a settlement involving facebook users, who presumably are all connected via facebook, there is no reason why absent class members cannot be polled. Do they "like" this foundation? what would they prefer? Might I suggest Public Citizen as a recipient?
This case might be a fine vehicle for the Supreme Court to consider cy pres settlements. Given how few cases the Court decides, how few class actions actually are filed and litigated (less than 1% of the federal docket) its not clear to me that this is the best use of its time. That said, if the Court does grant cert, it would be wise to consider both the overall benefits and costs of cy pres to consumers and society more generally, not merely the fact that the lawyers got a lot of money here. This is a story of more money than sense.